Rhodes v. Chilliwack Minor Hockey Association, 2025 BCHRT 30
Date Issued: February 11, 2025
File(s): CS-004471
Indexed as: Rhodes v. Chilliwack Minor Hockey Association, 2025 BCHRT 30
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Brittany A. Rhodes
COMPLAINANT
AND:
Chilliwack Minor Hockey Association
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND COMPLAINT
Rule 24(4)(a)
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Lori H. Lam
Counsel for the Respondent: Christopher D. Drinovz
I INTRODUCTION
[1] Brittany Rhodes applies to amend her complaint against Chilliwack Minor Hockey Association [Association] under Rule 24(4)(a) of the Tribunal’s Rules of Practice and Procedure [Rules].
[2] Ms. Rhodes originally filed her complaint on February 18, 2021, alleging discrimination in employment based on sex and family status contrary to s. 13 of the Human Rights Code. Ms. Rhodes alleges that after the birth of her child, the Association did not accommodate her requests about hours of work and location of work arising from her childcare obligations. The complaint relates to, among other things, her request for a leave of absence in the fall of 2020, and the Association’s termination of her employment upon her return from leave in January 2021. Ms. Rhodes now seeks to amend her complaint to add the grounds of physical and mental disability.
[3] The Association opposes the application. The Association submits that the amendments do not allege facts that, if proven, could establish a contravention of the Code. They also emphasize Ms. Rhodes’ delay in filing the amendment to argue that the amendment should not be accepted under s. 22 of the Code. The Association argues, among other things, that it would be unfair to permit Ms. Rhodes to amend her complaint at this stage in the proceeding, and they would experience substantial prejudice if it were accepted.
[4] For the reasons that follow, I grant the application to amend as it relates to the allegations of discrimination based on mental disability. As I explain below, assuming these allegations are late filed, I am satisfied it is in the public interest to allow the amendment and that no substantial prejudice will result in the circumstances. More specifically, while I acknowledge the significant delay in filing the amendment, the amendment covers the same time frame, and essentially the same alleged acts of the respondents, as the original complaint. I am satisfied that any potential impact on the application to dismiss process can be addressed, and I make orders to address that issue. Regarding the physical disability allegations, I find that the amendment does not set out an arguable contravention.
II BACKGROUND
1. The Original Complaint
[5] As noted above, Ms. Rhodes filed a complaint against the Association on February 18, 2021, alleging discrimination in employment on the grounds of on sex (female, pregnancy) and family status (family care responsibilities).
[6] Ms. Rhodes says that her employment with the Association began in August 2016. She alleges that, in November 2019, she was hospitalized for pregnancy-related complications and subsequently delivered her child prematurely. She says her child remained hospitalized until January 2020, during which she worked remotely, and that she continued to work remotely due to the COVID-19 pandemic in or around March 2020.
[7] Ms. Rhodes alleges that, beginning in June 2020, the Association changed her hours of work and work location (from her home to the Association’s office). Ms. Rhodes alleges that the changes were made without sufficient notice for her to meet her childcare obligations. She alleges that, when she raised concerns with the Association, they informed her that “she would be written up” if she did not find a way to adapt to the changes.
[8] Ms. Rhodes further alleges that, in September 2020, she had a discussion with her supervisor [the September Discussion ]. She says that during the September Discussion, her supervisor advised her that her schedule would be changed, and that she would need to work on a weekend. Ms. Rhodes alleges that the supervisor told her that the Board would view her negatively should she not comply.
[9] Ms. Rhodes further alleges that, during the September Discussion, she told her supervisor that she should have taken maternity leave and was under a great deal of stress. She alleges that that the supervisor advised her that, if she took a leave, the Association would have to find a temporary replacement and there was no guarantee she would have a position upon her return. Ms. Rhodes alleges that she left the discussion feeling “very distraught.”
[10] On or about September 21, 2020, Ms. Rhodes went on maternity leave. She alleges that, shortly before going on leave, the supervisor advised her that, if she went on maternity leave, she should not expect a job to come back to.
[11] While on leave, Ms. Rhodes wrote to the Association to confirm that January 17, 2021, would be the start date for her return to work from leave. She alleges that, a few days later, the Association advised her that her employment was terminated.
2. The Tribunal Proceeding
[12] In August 2022, the participants attended a mediation but did not resolve the complaint.
[13] In September 2022, the Association filed its Form 2 – Complaint Response. The Association denied discriminating against Ms. Rhodes. They say they encouraged her to take maternity leave, but she refused. They accommodated her work location and hours; however, she did not abide by the accommodations, either working less than her full-time hours, making last-minute changes to her hours or leaving the office at various times without notice. They deny bullying her or harassing her during the September Discussion and deny that there were any discussions regarding her taking maternity leave. They allege that after the September Discussion, Ms. Rhodes stopped attending work without advising the Association, and later emailed the Association that, “she was taking a leave of absence to alleged stress and mental health issues.” Further, the Association did not terminate her employment; rather, her contract came to its natural end at the expiry of its terms.
[14] In June 2023, the parties completed disclosure and filed their list of documents with the Tribunal.
[15] On July 13, 2023, the Tribunal notified the parties that the complaint was at the Tribunal’s Case Path Pilot stage: see, Case Path Pilot Practice Direction .
[16] On March 22, 2024, the Tribunal assigned the complaint to the hearing path.
[17] On April 5, 2024, the Association filed a Form 7.5 – Request to File Dismissal Application. The Association sought leave to file an application to dismiss the complaint under ss. 27(1)(c), (d)(i), (f) of the Code based on new information.
[18] On April 24, 2024, the Tribunal granted the Association leave to file the application to dismiss under ss. 27(1)(c) and (f) of the Code, only, and set a submission schedule. The deadline for the Association to file its application was May 30, 2024.
[19] On May 14, 2024, Ms. Rhodes filed a Form 3 – Amendment Form.
[20] On May 23, 2024, the Association advised the Tribunal that it opposed the amendment because, it argued, it did not comply with Rule 24(4)(a) or Rule 24(4)(b). Rule 24(4)(a) requires a complainant to apply to amend to add an allegation that occurred outside the time limit for filing a complaint. Rule 24(4)(b) requires a complainant to apply to amend if there is an outstanding application to dismiss a complaint.
[21] The Tribunal then set a submissions schedule to address the issue and directed Ms. Rhodes to file an application for leave to amend her complaint. I pause here to clarify that in making this direction, the Tribunal did not decide, as the Association asserts, that Rule 24(4) applies, and that leave was required to amend. The Tribunal’s direction was procedural, not substantive.
[22] Before turning to the proposed amendment and my decision, I note that, as instructed, Ms. Rhodes applied to amend her complaint. She applied under Rule 24(4)(a) and the parties did not subsequently address Rule 24(4)(b). This decision, therefore, focuses on the timeliness of the amendment. At the end of my reasons, I briefly address Rule 24(4)(b).
3. The proposed amendment
[23] Ms. Rhodes argues that the proposed amendment is not out of time, and in the alternative, the Tribunal should exercise its discretion to accept the late filed amendment.
[24] In the Amendment Form, Ms. Rhodes states that she intends to amend her complaint “to add the additional ground of physical and/or mental disability in relation to work-related anxiety and severe stress necessitating a leave of absence.”
[25] In addition, Ms. Rhodes seeks to add the following to the complaint:
1. The Complainant, Brittany Rhodes, was absent from work for approximately 4 months beginning in the fall of 2020, indicating a significant level of impairment.
2. Ms. Rhodes was advised by her physician to go [on] maternity leave. She was experiencing significant anxiety due to her work environment and needed to properly recover from the pregnancy and birth of her son.
3. The Respondent, the Chilliwack Minor Hockey Association, was aware that Ms. Rhodes had met with her physician, and was seeking a leave of absence on the advice of her physician.
4. The Chilliwack Minor Hockey Association failed to discharge its duty to inquire into Ms. Rhodes’ medical condition as it related to her request for maternity leave, or at all.
[26] The Association argues that the amendment is out of time and the Tribunal should not accept it for filing for several reasons, which I address below.
III DECISION
A. Applicable Law: Rule 24(4)(2) and Section 22 of the Code
[27] As set out above, Rule 24(4)(a) requires a complainant to apply to amend their complaint when the amendment adds an allegation that occurred outside of the time limit for filing the complaint under s. 22 of the Code.
[28] Section 22 of the Human Rights Codeaddresses the time limit for filing a complaint. It reads in relevant part as follows:
22(1) A complaint must be filed within one year of the alleged contravention.
…
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[29] Under s. 22(3) of the Code, the Tribunal has the discretion to accept late-filed complaints, if it is satisfied that it is in the public interest to do so and that no one will suffer substantial prejudice as a result.
[30] I assume, without deciding, that the amendment is filed out of time. I now consider whether to allow the amendment under s. 22(3). I first consider whether it is in the public interest to accept the amendment. Because I find that it is, I must also consider whether substantial prejudice will result to any person because of the delay.
B. Is it in the public interest to allow the amendment to the complaint?
[31] Whether or not it is in the public interest to accept a late-filed complaint or amendment to a complaint is a multi-faceted analysis. The Tribunal’s enquiry is fact and context specific and assessed in accordance with the purposes of the Code: Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [Mzite] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mziteat para. 55. The Tribunal also considers whether the amendment sets out an arguable contravention of the Code, an issue to which I now turn.
1. Does the amendment set out an arguable contravention?
[32] The Association argues that the application should be denied because the amendment does not set out an arguable contravention of the Code.
[33] I am satisfied that the amendment sets out an arguable contravention in respect of mental disability, but not in respect of physical disability.
[34] Beginning with mental disability, the Association’s primary argument is that the amendment does not set out an arguable contravention and, in particular, that stress is not a disability under the Code . The Association further argues that the amendment does not set out an adverse impact connected to a mental disability and that the allegations regarding a duty to inquire are insufficient.
[35] While I accept the Association’s submission that neither stress, nor anxiety, in themselves are disabilities for the purposes of the Code, I am not satisfied that this is all that Ms. Rhodes’ amendment provides. I understand the amendment to allege that Ms. Rhodes was experiencing the symptoms of stress and anxiety, and that the symptoms were of a severity that brought them within the realm of disability under the Code. I note that the amendment refers to the symptoms of “severe stress” and “significant anxiety.” In addition, the amendment indicates that she was experiencing a “significant level of impairment,” that her symptoms “necessitate[ed] a leave of absence,” and that she sought leave based on medical advice. I am satisfied that these allegations, taken together, are sufficient to allege a protected characteristic for the purpose of s. 27(1)(b). In other words, the alleged facts, if proven, could establish a mental disability.
[36] I make no comment as to whether the allegations and evidence before me would be sufficient to survive an application to dismiss under s. 27(1)(c). That issue is not before me. All I am required to determine is whether the mental disability allegation satisfies the low bar required under s. 27(1)(b), and I am satisfied that it does.
[37] Similarly, I am satisfied that the amendment sets out an arguable adverse impact connected to a mental disability. As I understand the amendment and complaint, Ms. Rhodes alleges that the Association’s termination of her employment was connected to her protected characteristics. I understand the allegation to be that one of the reasons she required a leave was because of a mental disability. I understand the allegation principally to be that she was terminated by the Association because she took a leave, and that in the circumstances, it was incumbent on the Association to inquire about her need for leave before terminating her employment.
[38] I reach a different conclusion about the amendment regarding physical disability. Unlike the mental disability allegation, the amendment does not set out any allegations regarding the nature of the alleged physical disability or how it impaired Ms. Rhodes’ ability to carry out the normal functions of life. There are simply no details. While I appreciate that the Tribunal has recognized that pregnancy and childbirth may bring serious physical impacts, in addition to psychological and emotional ones (see e.g. LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88 at para. 79), in the circumstances of this case I cannot conclude that the amendment sets out allegations that could establish a physical disability under the Codeor an adverse impact related to it. I understand the amendment to events beginning in September 2020 and in the absence of allegations about any physical disability Ms. Rhodes was experiencing at that time, I must deny the amendment.
2. Is it in the public interest to accept the allegations regarding mental disability?
[39] I now consider whether, assuming the amendment is late filed, it is in the public interest to accept the allegations regarding mental disability. After considering the relevant factors, I am satisfied that it is.
[40] To begin, I accept that the length of the delay is significant and is a factor that weighs against accepting the amendment. The Association says the amendment was filed 28 months out of time, and I agree that this is a significant delay.
[41] I also agree with the Association that Ms. Rhodes’ explanation for the delay in the circumstances is not compelling. In essence, her explanation is that she was engaged in the Tribunal proceeding and related settlement discussions and negotiation with the Association. The Association emphasizes that she has been represented by counsel throughout the proceeding. I agree with the Association that Ms. Rhodes’ explanation in these circumstances does not weigh in favour of acceptance. While I agree with Ms. Rhodes that there is a public interest in encouraging settlement of human rights complaints before recourse to the Tribunal (Chartier v. School District No. 62, 2003 BCHRT 39 at para. 14), pursuit of settlement does not explain the delay in this case.
[42] However, I disagree with the Association regarding whether the length of the delay and the explanation of the delay are determinative. I find they are not.
[43] What persuades me otherwise is the nature of the allegations and the amendments and their relationship to the allegations in the original complaint.
[44] As I understand Ms. Rhodes’ submissions, she argues that she seeks to add the allegations regarding mental disability so her existing allegations can be addressed in their full context. Put another way, she is not adding new events to the complaint but seeking to have the Tribunal understand and adjudicate those events in their full context.
[45] I note that the Tribunal has endorsed similar reasoning in cases where a complainant seeks to amend to add an additional ground of discrimination that covers the same time period and conduct of the respondent: see e.g. Kruger v. Xerox Canada (No. 3), 2005 BCHRT 284 [Kruger] at paras. 32-34 and Graham v. West Coast Family Support Institute, 2010 BCHRT 11 [Graham] at paras. 44-48.
[46] As the Tribunal put it in Kruger:
[31] In my view, it will almost always be in the public interest to allow all aspects of a complaint which arise within the same time frame – a time frame which has already been accepted for filing by the Tribunal – to be heard together. In my view, this is in accord with all of the purposes of the Code,as set out in s. 3.
[47] The Tribunal endorsed this line of reasoning in Graham :
[56] In the end, what persuades me that it would be in the public interest to accept Ms. Graham’s amendment to add the ground of family status is that it covers the same time frame, and essentially the same alleged acts of the respondents, as the original complaint, but recharacterizes those acts to allege that Mr. Graham suffered adverse treatment, not only because of her disability, but also because of her family status. As noted above, she alleges some facts which could ground such an allegation, and the respondents may seek particulars of any others.
[57] In Kruger (No. 3), the Tribunal held that it is “almost always” in the public interest to allow amendments to include all aspects of a complaint which occur in the same time frame, and which arise on the same facts as those on which the original complaint was based, and to consider all legal issues arising on the facts alleged in the original complaint.
[58] Since the evidence at any hearing of Mr. Graham’s complaint of discrimination based on mental disability will necessarily cover much of the same ground, I think it is in the public interest that a hearing not become bogged down in arguments about whether any particular piece of evidence about her family circumstances or obligations is or is not relevant to her mental disability.
[48] I adopt the same reasoning here. The proposed amendment relates to a time period covered by the original complaint, the period from September 2020 to the termination of Ms. Rhodes’ employment in January 2021. Moreover, it relates to essentially the same acts of the respondent – the Association’s response to her request for accommodation in September 2020, her request for leave and the Association’s response to it, and the Association’s termination of her employment in January 2021. As in Graham , I am of the view that it is in the public interest that the hearing not become bogged down in arguments about whether an adverse impact connected to sex or family status are in fact arguments about mental disability, or vice versa, particularly where it appears that Ms. Rhodes may argue that these protected characteristics intersect.
[49] I pause to note that, in the application to dismiss context, the Tribunal is mindful about whether dismissing part of a claim “could also later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rules”: Byelkova v Fraser Health Authority, 2021 BCSC 1312, at para. 115. Similarly, I am mindful here that removing the mental disability allegations could foreclose appropriate findings at a hearing on the merits.
[50] In addition, my conclusion in this regard is supported by the fact that, even before the amendment, the parties both referred to Ms. Rhodes’ mental health in their filings with the Tribunal. For instance, the complaint referred to Ms. Rhodes being under “a great deal of stress” in September 2020. The complaint response refers to Ms. Rhodes raising, in September 2020, “alleged stress and mental health issues.” While not determinative, this suggests that evidence about Ms. Rhodes mental health, and the parties’ communications about that, would be before the Tribunal in any event and part of the evidentiary and factual matrix underlying the complaint.
[51] Finally, the fact that the amendment includes an allegation regarding a duty to inquire on the Association’s part does not change my conclusion. Again, the allegations relate to the same time period and essentially the same conduct on the Association’s part, which already included an alleged failure to accommodate.
[52] For all these reasons I am satisfied that it is in the public interest to accept the amendment based on mental disability.
3. Will substantial prejudice to the Association result if the amendment is allowed?
[53] The Association argues that it will suffer substantial prejudice if the amendment application is granted. It advances several arguments on this point, and I have considered them all. As I explain next, I am not satisfied on the materials before me that the Association will suffer substantial prejudice. Further, I am satisfied that any concerns the Association has raised can be addressed with the Tribunal’s process.
[54] To the extent the Association argues that it is prejudiced because it had no knowledge of Ms. Rhodes’ disability allegations prior to the amendment, I do not find this argument persuasive. As note above, in September 2022, the Association pleaded, among other things, that in September 2020 Ms. Rhodes had raised “alleged stress and mental health issues.” This suggests that, before the amendment, the Association did not dispute that in September 2020, Ms. Rhodes had raised issues with it about her “mental health.”
[55] Turning to the Association’s arguments about the passage of time and its impact on the Association’s evidence, while the Association has advanced general arguments in this regard, it has not provided anything specific about why it is prejudiced. It says that evidence of witnesses will likely have eroded with the passage of time and records will not exist because its volunteer board’s membership has changed in the interim. But these are general assertions, without any specifics. The Association has not pointed to any specific witnesses who would not be available, or what specific documents have been lost that would cause significant prejudice to them. Given the amendment relates to the same underlying events and conduct of the Association, it is not apparent to me why the Association would not rely on principally the same oral and documentary evidence it has already disclosed. Moreover, if additional document disclosure is required, it is not apparent to me why the Association cannot make reasonable efforts to contact past Board members to inquire about any arguably relevant documents.
[56] The Association also makes arguments about potential impact on the Tribunal proceeding, including the necessity of having to update its disclosure and additional hearing costs if the matter proceeds to hearing and it seeks expert evidence. While I acknowledge the inconvenience to the Association here, I am not satisfied this results in substantial prejudice. There is no evidence before me that disclosure relating to the same underlying events and conduct will require substantial resources on the Association’s part. I observe that if the Association is of the view that Ms. Rhodes’ conduct in the proceeding gives rise to additional costs, the Association is at liberty to apply for costs at a hearing. I should not be taken as suggesting that such an application would be successful, I simply mention it as a potential option in circumstances where the Association’s submissions about the impact on the Tribunal process are to an extent hypothetical.
[57] Finally, I turn to the Association’s arguments about the impact on the Case Path Pilot and application to dismiss process. The Association emphasizes the timing of the amendment application and that it will have to “redraft and reimagine the ATD it proposes.” I am sympathetic to this submission and acknowledge it would be a more efficient use of the parties’ and the Tribunal’s limited resources for the amendment to have been brought before the Tribunal granted the request to file an application to dismiss. Generally, complainants should file amendments at the earliest possible opportunity. In the circumstances, however, I am satisfied that any fairness issues can be addressed.
[58] The Tribunal has already granted the Association leave to amend the complaint under both s. 27(1)(c) and s. 27(1)(f). Given the amendment, I confirm that the Association has leave to apply to dismiss the complaint as amended under both s. 27(1)(c) and 27(1)(f). It is not apparent to me that any additional subsections of s. 27(1) arise as a result of the amendment, but if the Association disagrees, they are permitted to seek leave to dismiss on additional grounds. They have two weeks to do so from the date the parties’ have provided their updated document disclosure.
[59] Ultimately, I am not satisfied that the Association will suffer substantial prejudice as a result of the amendment.
[60] Finally, I note that the Association originally objected to the proposed amendment under Rule 24(4)(b). Ultimately the parties did not provide submissions on the application and Rule 24(4)(b). I observe that Rule 24(4)(b) provides that a complainant must apply to amend where “there is an outstanding application to dismiss the complaint.” In this case, the amendment was filed before the Association filed their application to dismiss. As such, it is not apparent to me how Rule 24(4)(b) would be engaged. Further, and in any event, for the reasons already given, I am persuaded that accepting the amendment generally furthers the just and timely resolution of the complaint.
IV CONCLUSION
[61] The application to amend the complaint is granted, in part.
[62] The Association has leave to apply to dismiss the complaint as amended under s. 27(1)(c) and s. 27(1)(f) of the Code.
Laila Said Alam
Tribunal Member